Bordenkircher v. Hayes

Mr. Justice Blackmun,

with whom Mr. Justice Brennan and Mr. Justice Marshall join,

dissenting.

I feel that the Court, although purporting to rule narrowly (that is, on “the course of conduct engaged in by the prosecutor in this case,” ante, this page), is departing from, or at least restricting, the principles established in North Carolina v. *366 Pearce, 395 U. S. 711 (1969), and in Blackledge v. Perry, 417 U. S. 21 (1974). If those decisions are sound and if those principles are salutary, as I must assume they are, they require, in my view, an affirmance, not a reversal, of the judgment of the Court of Appeals in the present case.

In Pearce, as indeed the Court notes, ante, at 362, it was held that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” 395 U. S., at 725 . Accordingly, if, on the new trial, the sentence the defendant receives from the court is greater than that imposed after the first trial, it must be explained by reasons “based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding,” other than his having pursued the appeal or collateral remedy. Id., at 726 . On the other hand, if the sentence is imposed by the jury and not by the court, if the jury is not aware of the original sentence, and if the second sentence is not otherwise shown to be a product of vindictiveness, Pearce has no application. Chaffin v. Stynchcombe, 412 U. S. 17 (1973).

Then later, in Perry , the Court applied the same principle to prosecutorial conduct where there was a “realistic likelihood of 'vindictiveness.’ ” 417 U. S., at 27 . It held that the requirement of Fourteenth Amendment due process prevented a prosecutor’s reindictment of a convicted misdemeanant on a felony charge after the defendant had exercised his right to appeal the misdemeanor conviction and thus to obtain a trial de novo. It noted the prosecution’s “considerable stake” in discouraging the appeal. Ibid.

The Court now says, however, that this concern with vindictiveness is of no import in the present case, despite the difference between five years in prison and a life sentence, because we are here concerned with plea bargaining where there is give-and-take negotiation, and where, it is said, ante, *367 at 363, “there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.” Yet in this case vindictiveness is present to the same extent as it was thought to be in Pearce and in Perry ; the prosecutor here admitted, see ante, at 358 n. 1, that the sole reason for the new indictment was to discourage the respondent from exercising his right to a trial. 1 Even had such an admission not been made, when plea negotiations, conducted in the face of the less serious charge under the first indictment, fail, charging by a second indictment a more serious crime for the same conduct creates “a strong inference” of vindictiveness. As then Judge McCree aptly observed, in writing for a unanimous panel of the Sixth Circuit, the prosecutor initially “makes a discretionary determination that the interests of the state are served by not seeking more serious charges.” Hayes v. Cowan, 547 F. 2d 42, 44 (1976). I therefore do not understand why, as in Pearce , due process does not require that the prosecution justify its action on some basis other than discouraging respondent from the exercise of his right to a trial.

Prosecutorial vindictiveness, it seems to me, in the present narrow context, is the fact against which the Due Process Clause ought to protect. I perceive little difference between vindictiveness after what the Court describes, ante, at 362, as the exercise of a “legal right to attack his original conviction,” *368 and vindictiveness in the “ ‘give-and-take negotiation common in plea bargaining/ ” Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself. The Court of Appeals rightly so held, and I would affirm the judgment.

It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court’s holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public. 2

In Brady v. United States, 397 U. S. 742 (1970), where the Court as a premise accepted plea bargaining as a legitimate practice, it nevertheless observed:

“We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty.” Id., at 751 n. 8. See also Colon v. Hendry, 408 F. 2d 864 (CA5 1969); United States v. Jamison, 164 U. S. App. D. C. 300, 505 F. 2d 407 (1974); United States v. DeMarco, 401 F. Supp. 505 (CD Cal. 1975), aff’d, 550 F. 2d 1224 (CA9 1977), cert. denied, post, p. 827; United States v. Ruesga-Martinez, 534 F. 2d 1367, 1369 (CA9 1976).

That prosecutors, without saying so, may sometimes bring charges more serious than they think appropriate for the ultimate disposition of a case, in order to gain bargaining leverage with a defendant,, does not add support to today’s decision, for this Court, in its approval of the advantages to be gained from plea negotiations, has never openly sanctioned such deliberate overcharging or taken such a cynical view of the bargaining process. See North Carolina v. Alford, 400 U. S. 25 (1970); Santobello v. New York, 404 U. S. 257 (1971). Normally, of course, it is impossible to show that this is what the prosecutor is doing, and the courts necessarily have deferred to the prosecutor’s exercise of discretion in initial charging decisions.

Even if overcharging is to be sanctioned, there are strong reasons of fairness why the charges should be presented at the beginning of the bargaining process, rather than as a filliped threat at the end. First, it means that a prosecutor is required to reach a charging decision without *369 any' knowledge of the particular defendant’s willingness to plead guilty; hence the defendant who truly believes himself to be innocent, and wishes for that reason to go to trial, is not likely to be subject to quite such a devastating gamble since the prosecutor has fixed the incentives for the average case.

Second, it is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one. Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings 'of more serious indictments yet to come.

Finally, I would question whether it is fair to pressure defendants to plead guilty by threat of reindictment on an enhanced charge for the same conduct when the defendant has no way of knowing whether the prosecutor would indeed be entitled to bring him to trial on the enhanced charge. Here, though there is no dispute that respondent met the then-current definition of a habitual offender under Kentucky law, it is conceivable that a properly instructed Kentucky grand jury, in response to the same considerations that ultimately moved the Kentucky Legislature to amend the habitual offender statute, would have refused to subject respondent to such an onerous penalty for his forgery charge. There is no indication in the record that, once the new indictment was obtained, respondent was given another chance to plead guilty to the forged check charge in exchange for a five-year sentence.